RECEIVED
CLERK’S
OFP!CE
JAN
2
82002
BEFORE THE ILLINOiS POLLU11ON CONTROL BOARD
STATE OF IWNOIS
Pollution
Control
Board
TO:
Ms. Dorothy M. Gunn
Clerk ofthe Board
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
(VIA FIRST CLASS MAIL)
Joel J. Sternstein
Hearing Officer
Illinois Pollution Control Board
James R.
Thompson Center
100 West Randolph Street
Suite
11-500
Chicago, Illinois 60601
(VIA FIRST CLASS MAIL)
(PERSONS ON ATTACHED SERVICE
LIST)
PLEASE TAKE NOTICE that I have filed today with the Clerk ofthe Illinois
Pollution Control Board an original
and nine copies ofthe
MOTION FOR LEAVE TO
FILE
INSTANTER and
PUBLIC COMMENTS
OF THE ILLINOIS
ENVIRONMENTAL REGULATORY
GROUP,
copies ofwhich are herewith served
upon you.
Dated:
January 24, 2002
Karen L. Bernoteit
Illinois Environmental
Regulatory Group
215 East Adams Street
Springfield, Illinois 62701
(217) 522-5512
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
By:
One of Its Attorneys
IN THE MATTER OF:
AMENDMENTS TO 35 ILL. ADM. CODE 732;
REGULATION OF PETROLEUM LEAKING
UNDERGROUND STORAGE TANKS
NOTICE OF FILING
)
)
)
ROl-26
)
(Rulemaking
-
Land)
THIS FILING SUBMITTED
ON RECYCLED
PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
AMENDMENTS TO
35
ILL. ADM. CODE 732;
REGULATION
OF
PETROLEUM LEAKING
UNDERGROUND STORAGE TANKS
MOTION FOR LEAVE TO
FILE INSTANTER
NOW COMES the ILLINOIS ENVIRONMENTAL REGULATORY GROUP
(IERG), by one if its attorneys, Karen L. Bernoteit, and respectfully seeks leave
from the
Illinois Pollution Control Board (Board) to file INSTANTER the attached Comments of
the Illinois Environmental Regulatory Group (IERG) in the above-referenced
proceedings.
In support ofits request, IERG states as follows:
Due to the departure of IERG’s former Executive Director, DK Hirner, on
December 31, 2001, and other pressing matters, IERG was unable to file its Comments
on the Board’s Proposed Regulation and First Notice Opinion and Order in R0l-26,
issued
on November
1, 2001.
IERG, the Illinois
State Chamber of Commerce and the
Illinois Environmental Protection Agency (Agency) cosponsored a training seminar
covering the Title V Air Permitting Program on January
15 and
17th, 2002 and IERG
held its Quarterly Meeting on January 16, 2002.
Because ofthe personnel changes at the
Executive Director level, IERG Staff had to direct its efforts on preparing for the above
events and was unable to finalize its Comments in RO1-26 by the due date.
The
inclusion ofIERG’s Comments
in the record ofthe above proceeding will present a more
complete record for the Board’s consideration.
WHEREFORE, IERG respectfully requests that the Board grant IERG’s Motion
in this matter.
RECEIVED
CLFR!’~
OFF”T~
J44N
2
8
2002
STATE OF IWNOIS
Pollution Control
Board
)
ROl-26
)
(Rulemaking
-
Land)
)
WHEREFORE, IERG respectfully requests that the Board grant IERG’s Motion
in this
matter.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
~
Karen L. Bernoteit
Dated:
January 24, 2002
Karen L.
Bernoteit
Illinois Environmental
Regulatory Group
215 East Adams Street
Springfield,
Illinois 62701
(217) 522-5512
2
RECEIVED
CLERK’S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JAN
2
8
2002
STATE OF IWNOIS
Pollution Control Board
IN THE MATTER OF:
)
)
AMENDMENTS TO 35 ILL. ADM. CODE 732;
)
R0l-26
REGULATION OF PETROLEUM LEAKING
)
(Rulemaking
-
Land)
UNDERGROUND STORAGE TANKS
)
COMMENTS
OF THE ILLINOIS ENVIRONMENTAL
REGULATORY GROUP
NOW COMES the ILLINOIS ENVIRONMENTAL REGULATORY GROUP
(“IERG”), by one if its attorneys, Karen L. Bernoteit,
and submits for its Comments on
the Illinois Pollution Control Board’s Proposed Rule and First Notice Opinion and Order,
dated November 1, 2001, in the above-titled matter, the following:
I.
BACKGROUND
By way ofbackground, IERG met with representatives ofthe Illinois
Environmental Protection Agency (Agency) and members ofthe Site Remediation
Advisory Committee (SRAC) prior to
the Agency’s filing ofthe proposal with the Illinois
Pollution Control Board (Board).
One ofthe main concerns on the part ofthe regulated
community was the Agency’s proposed Section 732.411, which,
among other things, sets
forth the factors the Agency must consider when determining whether a site
owner/operator has made best efforts to obtain access to off-site property that contains
contamination.
In its First Notice Opinion and Order, the Board proposed Section 732.4 11,
relating to Off-Site Access, that contains the following subsections:
•
The first provision contained in
35
Ill. Admin.
Code 732.411(a)
states that
an owner/operator that seeks to
demonstrate compliance with the proposed
35
Ill. Admin.
Code 732.404(c), (which states that an owner/operator is
not required to perform corrective action
on off-site property if it is unable
to gain off-site access despite the use of best efforts in accordance with
Section 732.411), must demonstrate compliance with the requirements
in
Section 732.411.
•
The second provision,
Subsection 732.411(b), delineates the elements that
must be included in a certified letter to
the owner of off-site property in
order to conduct best efforts to obtain off-site access.
•
The third provision, Subsection 732.411(c), purportedly contains the
documentation that the owner/operator must submitas part of a Corrective
Action Completion Report in order to demonstrate compliance with
Section 732.411.
The preamble to Subsection 732.311(d) purports to
be a method for the Agency to
determine whether a site owner/operator has complied with the best efforts provisions in
Subsection 732.411(b), that consist ofsending a certified letter that contains required
elements.
However, there is no nexus between the best
efforts provisions that contain
requirements for a certified letter in the proposed Subsection 732.411(b) and the factors
listed in the proposed Subsection 732.411(d), which are clearly general site conditions
based on possible exposure scenarios, and not access issues.
II.
THE STANDARD FOR ISSUANCE OF AN NFR LETTER TO
OWNERS/OPERATORS THAT HAVE BEEN
DENIED ACCESS TO
ADDRESS OFF-SITE CONTAMINATION
The Board’s proposal does not include a clearly defined standard for the issuance
ofNo Further Remediation (NFR) letters to site owners that have been denied access to
2
off-site property that contains contamination.
Because ofthe obvious inconsistency
between what the preamble ofthe proposed Subsection 732.411(d) states it will contain,
and what it in fact contains, the proposal fails to delineate a standard for Agency decision
making concerning to
issuance ofa NFR letter in this situation.
It may well be that the
best efforts provisions contained in Subsection 732.411(b) are selfevident and that there
is no need for a separate
subsection to guide how the Agency willjudge compliance with
Subsection 732.411(b).
IERG would agree to the elimination of Subsection (d) in its
entirety if a standard that ensured that any environmental risk posed by the off-site
contamination is considered in the decision ofwhether to issue an NFR letter to an
owner/operator that has been denied access to clean up off site contamination.
III.
THE NEED TO ASSESS OFF SITE
CONTAMINATION AS A
PRECONDITION TO GRANTING AN NFR LETTER
It appears that the proposed factors set forth in Subsections 732.411 (d)(1-9) are
aimed at assuring that no major environmental problem
is presented by offsite
contamination.
IERG agrees, as did the Illinois Petroleum Council (IPC), as evidenced in
its proposed regulatory revisions filed with the Board on March 29, 2001, that the
appropriate standard to be aware ofis whether the contamination remaining on the off-
site property poses an imminent threat ofharm to humanhealth or the environment.
IERG also believes that the owner/operator bears some responsibility to investigate
—
to
the extent they can
—
if off site contamination which poses an imminent threat will exist.
IERG recommends that the preamble to the proposed Subsection 732.411(d)(1-9) be
revisedto state that the subsection contains the factors the Agency should consider when
determining whether the off-site contamination poses an imminent threat to human health
or the environment.
IERG supports the factors proposed by the IPC in its proposed
3
Subsection 732.411(e), filed March 29, 2001, and would be open to considering
additional factors beyond those in the IPC proposal. IERG respectfully wishes to remind
the Board that the very reason that Section 732.411
is proposed is because offsite
contamination
will in fact remain off site.
To adopt open-ended language such as that
contained in the proposed Subsection 732.4 11(d), which allows the Agency to pick and
choose when and if a NFR letter can be granted based on an undefined level of off site
contamination, defeats the very purpose ofthe regulation.
IV.
THE EFFECT OF AN NFR LETTER
The result of complying with the provisions of the proposed Section 732.411
is
that the Agency will grant a NFR letter for that portion ofthe property that has been
remediated.
No release or NFR letter is granted for the off site property.
To be
successful, a remediation project must assure that contamination on the site will not
continue to migrate off site. Thus, the issue
is contamination offsite which will not get
any worse and which, despite the best efforts of the owner/operator, could not be
remediated. Under the Agency’s proposal, the remedy for such a situation might be
to
deny the owner/operator, who uses best efforts, an NFR letter for the property that it
remediated. This proposal is devoid oflogic and places the owner/operator in a circular
regulatory situation which on the one hand offers a way to obtain
an NFR if the
owner/operator cannot obtain offsite access despite the use ofbest efforts, and on the
other hand requires activities to assess the potential for off-site contamination which the
owner/operator is precluded from addressing.
Perhaps more important is the fact that denying an NFR letter to the
owner/operator in no way resolves the environmental concerns that may exist offsite.
4
Denying a NFR letter will not change the fact that the owner/operator was denied access
to offsite property.
Thus the net result is that the owner/operator who uses best efforts is
punished and the environmental concerns remain.
V.
CONCLUSION
IERG believes it is questionable from a public
policy standpoint,
to
adopt a regulation
that on its
face contains an
obvious inconsistency that results in the absence ofa clearly
articulated standard for the issuance ofNFR letters in certain circumstances.
Ifthe
regulated community is expected to adhere to applicable regulatory requirements, the
regulations should be as clear and concise as possible.
The adoption ofthe proposed
Subsection 732.411(d) might result in inconsistent interpretations among membersofthe
regulated community.
The regulation should read as clearly as possible so that -a
site/owner operator knows exactly what standard it must meet in order to obtain an NFR
letterwhen off-site contamination has not been addressed due to the denial ofaccess.
There is no purpose served in penalizing site owners/operators, by denying NFR letters
based on an unclear standard, for failing to address contamination on off-site property to
which they were denied access.
IERG urges the Board to reconsider the Off-Site Access provisions of the
proposed regulation and revise these provisions to ensure clarity by including a clearly
articulated standard for issuing an NFR letter to
an owner/operator that has not addressed
off-site contamination because ofthe inability to gain off-site access.
In addition, if the
Board believes that an assessment ofoff site contamination is necessary, the listed factors
should be revised consistent with those proposed by the IPC in its 35
Ill. Admin.
Code
732.4 l1(e)(1-3).
IERG would be
open to
considering additional factors beyond those
5
included in IPC’s proposal.
IERG urges the Board to act consistent with these public
comments.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
By:
Dated:
January 24,
2002
Karen L. Bernoteit
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP
215 East Adams Street
Springfield,
Illinois 62701
(217) 522-5512
IERGMAIN/PROJECTS/2 1/Posthearing comments.LUST
L.
Bernoteit
6
CERTIFICATE OF SERVICE
I, Karen L.
Bernoteit, the undersigned, certify that I have served a copy ofthe
MOTION FOR LEAVE TO FILE INSTANTER and PUBLIC
COMMENTS OF
THE ILLINOIS ENVIRONMENTAL REGULATORY GROUP upon:
Ms. Dorothy M. Gunn
Clerk ofthe Board
Illinois Pollution Control Board
James R. Thompson Center
100
West Randolph Street
Suite 11-500
Chicago, Illinois 60601
SEE ATTACHED
SERVICE LIST.
Joel J. Sternstein
Hearing Officer
Illinois Pollution Control Board
James R.
Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
by depositing said documents in the United States Mail in
Springfield, Illinois on
January 24, 2002.
-
Karen L.
Bernoteit
SERVICE
LiST
Scott
Anderson
Black
& Veatch
101
NWackerDrSte
1100
Chicago,
IL 60606
Lawrence
W.
Falbe
Wildman, Harrold, Allen
& Dixon
225 W Wacker Dr Ste
3000
Chicago,
IL 60606-1 229
Garry
Aronberg
Kuhlmann Design
Group
15
E Washington
Belleville,
IL 62220
Neil
F. Flynn
Attorney at Law
1035 S Second St
Springfield,
IL 62704
Bruce
Bonczyk
601 WMonroe
Springfield,
IL 62704
Lisa
Frede
Director of Regulatory Affairs
Chemical Industry Council of Illinois
9801 W Higgins
Rd
Ste 515
Rosemont, IL 60018
Robert A.
Carson,
P.E.
924 Cherokee
Dr
Springfield,
IL 62707
Harry A.
Chappel
Inland/Chappel Environmental
144 Laconwood
Springfield,
IL 62707
Cindy
Consalvo
Pioneer Environmental
700
N Sacramento Ste
101
Chicago,
IL 60612
William G.
Dickett
Sidley
& Austin
10
S Dearborn Ste
5200
Chicago, IL 60603
Leo P.
Dombrowski
Wildman, Harrold, Allen & Dixon
225 W Wacker Dr Ste 3000
Chicago,
IL 60606
Sid
Glenn
Arcadis
35
E WackerSte
1000
Chicago,
IL 60601
Daniel J. Goodwin
Goodwin Environmental Consultants
400
Bruns
Lane
Springfield,
IL 62702
Collin
Gray
SEECO
Environmental Services,
Inc.
7350
Duvon Dr
Tinley Park,
IL 60477
Dorothy M.
Gunn
Clerk
IL
Pollution Control
Board
100W. Randolph
Ste. 11-500
Chicago,
IL 60601
Thomas
L. Herlacher
Herlacher Angleton Associates, L
L C
8731
Bluff Rd
Waterloo, IL 62298
Ron
Dye
CORE Geological
Services,
Inc.
2621
Montego Ste
C
Springfield
,
IL 62704
Judy
Dyer
IL
Environmental Protection Agency
1021
N.
Grand Ave.
East P 0 Box 19276
Springfield,
IL 62794-9276
James
E. Huff
Huff& Huff,
Inc.
512W.
Burlington #100
LaGrange,
IL 60525
Kenneth
James
Carlson Environmental, Inc.
65
E Wacker Place
Ste
1500
Chicago,
IL 60601
SERVICE
LIST
Joe
Kelly
United Science Industries,
Inc
P 0
Box
360
Woodlawn,
IL 62898
Kenneth
Liss
Andrews Engineering,
Inc.
3535 Mayflower Blvd
Springfield,
IL 62707
Dan
Strubel
Speedway Super America, L
L
C
P0
Box
1500
Springfield,
OH
45001
David
Sykuta
IL Petroleum Council
P.O.
Box 12047
Springfield,
IL 62791
Pat
Ludewig
Caterpillar
P 0
Box
1875
Peoria, IL 61656-1 875
Georgia
Viahos
U.S. Navy
2501
A Paul Jones Street
Great Lakes,
IL 60088-2845
Barbara A.
Magel
Karaganis & White
Ltd.
414 N.
Orleans St.,
Ste. 810
Chicago,
IL 60601
Rodger
Walker
Walker Engineering
500 W Herrin
St
Herrin,
IL 62448
George K.
Moncek
United Env.
Consultants,
Inc.
119 E Palatine
Rd
Ste
101
Palatine,
IL 60067
Monte
Nienkerk
Clayton Environmental Consultants
31~40
Finley Rd
Downers Grove,
IL 60515
David
L. Rieser
Ross & Hardies
150 N. Michigan
Ave.
Ste. 2500
Chicago.
IL 60601
Wayne
Smith
Pioneer Environmental, Inc.
700
N Sacramento
Chicago.
IL 60612
Suzanne
Smith
Sonnenschein,
Nath
& Rosenthal
8000
Sears Tower
Chicago, IL 60606
Joel
Sternstein
Hearing
Officer
IL Pollution
Control
Board
100 W Randolph St
Ste
11-500
Chicago,
IL 60601
John W.
Watson
Gardner Carton
& Douglas
321
N
Clark
St
Chicago, IL 60610-4795
Gary T. Zolyak
U
S Army Environmental Center
Northern Regional Env Office,
Bldg E-4480
Aberdeen Proving Ground,
MD 21010-5401
